COURT FILE NO.: CR-21-0026-00

DATE: 2024-03-13

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

His Majesty the King

T. Jukes and D. Wood, for the Crown

• and -

Jonathan Massicotte

G. Joseph and P. Vo, for the Accused

Accused

HEARD: February 13, 14, 15 and 16, 2023, August 14 and 15, 2023, and February 1, 2024 at Thunder Bay, Ontario

Mr. Justice J.S. Fregeau

Reasons For Judgment

INTRODUCTION

[1] Jonathon Massicotte (the “accused”) stands charged that, on or about September 3, 2014, in Thunder Bay, he did commit second-degree murder on the person of William Darryl Wapoose, contrary to section 235(1) of the Criminal Code.

[2] No physical or forensic evidence directly implicates the accused in the death of Mr. Wapoose. The Crown’s case is comprised primarily of the evidence of Luke Zoccole, a friend of the accused who testified that he was present when Mr. Wapoose was killed, and Tatjana Shawanamash-Ignace, a former intimate partner of the accused. The accused did not testify.

THE CASE FOR THE CROWN

[3] On September 3, 2014, the Thunder Bay Police Services was advised that a cyclist had come upon the body of a deceased male on the side of Chapples Drive, a roadway that encircles Chapples Park, in Thunder Bay. Chapples Park closes daily at 11:00 p.m. However, it is not gated and the streetlights which illuminate Chapples Drive remain on overnight. It is not in dispute that Chapples Park is generally considered to be unsafe at night.

[4] Police attended the scene and observed a deceased male, later identified as Mr. Wapoose, laying in the ditch approximately three metres off Chapples Drive. The grass in which Mr. Wapoose’s body was found grows wild, and police observed it to be approximately waist high and thick on September 3, 2014.

[5] Police observed a large amount of dried blood on the ground near the throat area of Mr. Wapoose and another small pool of dried blood on the south side of Chapples Drive in the vicinity of a streetlight adjacent to Chapples Drive near where Mr. Wapoose was found.

[6] Approximately 31 metres from the location where Mr. Wapoose’s body was found, there’s a recreational path that branches off from Chapples Drive and which provides one means of access to and from the park. During their investigation at the scene, the police collected various pieces of paper strewn on the ground on Chapples Drive from the location where Mr. Wapoose’s body was found, to the recreational path, and along the recreational path.

[7] Dr. N. Escott’s January 30, 2015, Report of Postmortem Examination of Mr. Wapoose was filed as an appendix to an Agreed Statement of Facts. Dr. Escott’s opinion was that Mr. Wapoose died as a result of “multiple blunt and sharp force injuries to head and neck”. Dr. Escott further opined that “the most likely primary cause of death is exsanguination from a deep stab wound to the neck and throat, which cut the internal carotid artery and the jugular vein on the left side”. Dr. Escott added that “a contributary cause [of death] is the skull fracture with brain contusion, which would have probably rendered him unconscious. This was caused by a significant blow to the head by a heavy object”.

[8] Dr. Escott had previously testified in cases relating to the death of Mr. Wapoose. The following facts were admitted at this trial based on Dr. Escott’s previous testimony:

1. Skull fracture – Mr. Wapoose may have recovered from this injury if that was his only injury. Likely would have rendered him unconscious but not necessarily fatal on its own;

2. The skull fracture was located on the frontal bone, which…is on the front part of the skull;

3. There were no injuries to the back of the skull nor on the scalp covering that portion of the skull;

4. Skull fracture – was as a result of blunt force trauma from some significant force… can’t provide mechanism of the blow;

5. Stab wounds and cuts [were] caused by a sharp instrument such as a knife;

6. The most significant injury was stab wound #1 which is a gaping wound…into the soft tissues of the neck. This was the main cause of the bleeding. This wound…cut the jugular vein… and the internal carotid artery…, then it sliced across the top of the tongue,… ends in the roof of the mouth;

7. Stab wound #2 – different wound behind the ear. Could not determine where it went because it went into the trajectory of Stab wound #1;

8. Front of the neck – cuts #1 and #2 – slash across the neck with a blade a couple of times but it did not go very deep – just the fat under the skin. Didn’t bleed very much and didn’t damage any internal structures;

9. The stab wounds to the back of Mr. Wapoose were not lethal.

10. Digestive system – the esophagus contained blood, Mr. Wapoose was also swallowing blood. He had ½ litre of blood in his stomach, the first part of the small bowel had some too. Mr. Wapoose was breathing and swallowing blood for 10-15 minutes, maybe a little longer. He was unconscious so there was likely trouble breathing.

[9] In total, the Postmortem Report found that Mr. Wapoose suffered six stab wounds, two incised wounds, ten areas with contusions, two lacerations, five areas with abrasions, and four fractured ribs.

[10] The investigating officers had a suspect and persons of interest as early as September 2014. The accused, one of the persons of interest, was first interviewed by the police on November 4, 2014. The accused was not placed under arrest and attended the police detachment voluntarily. The police did not observe any injuries on the accused at the time of this interview. The voluntariness of this statement was not in issue.

[11] As a result of their interview of the accused, the police later talked with Robert Carlos Bluecoat on October 9, 2018. He was formally interviewed by police on May 22, 2019. Following this interview, on May 23, 2019, police spoke with Luke Zoccole. On May 24, 2019, police arrested Z.M.L., a young person, and the accused. The statements given to the police by Mr. Bluecoat and Mr. Zoccole led to these two arrests.

[12] At the time of the accused’s interview on November 4, 2014, he had just turned 18 years old. During this interview, the accused was polite, cooperative, and helpful to the investigating officers. When asked if he would be willing to provide a consent DNA sample if asked in the future, he replied “fur sure”. The accused did in fact provide a consent DNA sample after his May 24, 2019, arrest. As noted above, there is no physical or forensic evidence which implicates the accused in the death of Mr. Wapoose.

[13] During the interview on November 4, 2014, the accused acknowledged having heard about the September 2014 homicide in Chapples Park and acknowledged being with Mr. Zoccole, Mr. Bluecoat, and Z.M.L. that night. He also acknowledged that he, Mr. Zoccole and Z.M.L. walked Mr. Bluecoat home that night, who was very intoxicated. However, the accused denied having travelled through Chapples Park either on the way to, or from, Mr. Bluecoat’s home.

[14] The accused was interviewed by police shortly after his May 24, 2019, arrest. The voluntariness of this statement was conceded. At one point during this interview, the investigating officer said to the accused, “If after talking with [your lawyer], you want to sit down and give me the why…”. The accused then replied, “After sentencing and after everything’s said and done, then I’ll tell you. How about that? Because I would like to be able to see the outside world again. And within a reasonable amount of time”.

THE EVIDENCE OF LUKE ZOCCOLE

[15] Luke Zoccole was 16 years old in September 2014, and was 25 years old at the time of this trial. In September 2014, Mr. Zoccole had known Mr. Bluecoat, who was three years his junior, for “a couple years”, and had known the accused for “maybe a little over a year”, and who was two years older than him. Mr. Zoccole had not known Z.M.L. for long prior to September 2014, and knew him as “Johnny’s friend”, referring to the accused.

[16] According to Mr. Zoccole, on September 2, 2014, he, Mr. Bluecoat, Z.M.L., and the accused, began drinking at the accused’s house around 12:00 noon. They continued drinking until they left the house in the early evening, by which time Mr. Zoccole had “a good buzz” from the alcohol. He explained this to mean, “just right before drunk”. He testified that the accused and Mr. Bluecoat were in similar conditions.

[17] The four individuals walked around the neighbourhood and ended up at the International Friendship Gardens (“Friendship Gardens”), adjacent to Chapples Park. It was dark by the time this group arrived at Friendship Gardens, where they continued to drink before they proceeded into Chapples Park. Mr. Zoccole testified that he, the accused and Z.M.L. were “drunk” by this point, and that Mr. Bluecoat was “a little more intoxicated” and was having a hard time walking. Due to Mr. Bluecoat’s condition, the other three walked him home, having to “like carry him…or help him walk”.

[18] After taking Mr. Bluecoat home, Mr. Zoccole, Z.M.L. and the accused headed back toward the accused’s home, walking through Chapples Park. Mr. Zoccole described the park as “dark” with the streetlights on Chapples Drive being the only sources of light.

[19] Mr. Zoccole testified that soon after their group entered the park, the accused went over to the adjacent golf course and returned with a “pole” about three feet long and weighing about 30 pounds. Mr. Zoccole held this pole at one point and described that it was “heavy”.

[20] Mr. Zoccole told the court that the three of them continued walking and soon came upon “an intoxicated man”, now known to be Mr. Wapoose, who was sleeping up against one of the streetlight poles, with a backpack. Mr. Zoccole testified that Mr. Wapoose had “stuff”, “clothes”, that were scattered all over the place, and that Z.M.L. and the accused gathered his stuff up and put it into the man’s backpack.

[21] The three then continued walking along Chapples Drive and down the recreational path toward the skate park by the Delaney arena in the Friendship Gardens area. However, according to Mr. Zoccole, while the three of them were on the recreational path, already off Chapples Drive and out of the park, Z.M.L. suggested they go back to Mr. Wapoose and “steal his stuff”. Mr. Zoccole told the court that he “just wanted to go home”, but that he, along with Z.M.L. and the accused, returned to where Mr. Wapoose was sleeping.

[22] Mr. Zoccole testified that when the three of them got back to Mr. Wapoose, he was “on…all fours…like he was trying to get back up”. When asked what happened next, Mr. Zoccole testified that the accused, from behind and a little to the side, “hit [Mr. Wapoose] in the back of the head [once] with the pole”. On cross-examination, Mr. Zoccole confirmed that the accused had hit Mr. Wapoose with the pole on the back of the head.

[23] Mr. Zoccole told the court that he had then backed up such that he was standing at the point where the recreational path leaves Chapples Drive. From here he observed Z.M.L. and the accused punching and kicking Mr. Wapoose before dragging him into the ditch adjacent to Chapples Drive.

[24] Mr. Zoccole told the court that he was shocked, scared and “just wanted to go home”. Despite it being “pretty dark”, he testified that he saw Z.M.L. and the accused “start beating [the man] up” after they had taken him into the ditch. When asked how the lighting was “when they’re in the ditch”, Mr. Zoccole replied, “It was dark”.

[25] Mr. Zoccole agreed that the streetlight adjacent to Chapples Drive did not illuminate the ditch area into which Mr. Wapoose was taken. He further agreed that he was about 30 metres away from where Mr. Wapoose was in the ditch. Mr. Zoccole described the ditch as “overrun with grass”, such that it affected what he could see. He maintained, however, that he was able to observe Z.M.L. and the accused beating Mr. Wapoose in the ditch.

[26] Mr. Zoccole testified that both the accused and Z.M.L. participated in punching and kicking Mr. Wapoose in the ditch, describing the accused’s punches as “like overhand punching”. This evidence was accompanied by Mr. Zoccole demonstrating punching from his right shoulder horizontally. This beating went on for “just a few minutes”. After that, according to Mr. Zoccole, Z.M.L. and the accused grabbed Mr. Wapoose’s backpack, opened it and threw the contents inside everywhere.

[27] Mr. Zoccole testified that Z.M.L. and the accused then walked towards where he was standing and told him that “they wouldn’t hurt me, because I was their friend”. Mr. Zoccole then “grabbed [the man’s] bike and then I just went home”. He testified that it was a “BMX” bike and that he “ditched” it two alleys down from his place.

[28] Exhibit 10, an Agreed Statement of Fact, also deals with a “BMX” bike. On October 10, 2014, police were contacted by Mr. Wapoose’s cousin, Daniel Wapoose (“the cousin”), who had located a bicycle outside of White Cedar Health Care Centre, 125 South Vickers Street, that he claimed belong to Mr. Wapoose. When the police arrived, the cousin showed them a purple BMX style bicycle with a raised black seat, with a chain and lock around the handlebars. He identified this as Mr. Wapoose’s bike. The police next spoke to a man, Mr. Papaquash, who advised them that he had been using this bike for approximately two weeks. He had found it in the laneway behind his house. He advised the police that the bike had been in the laneway for approximately three to four days before he picked it up and started using it. He had no idea how the bike got into the laneway. Mr. Papaquash’s house is located at 236 Heron Street.

[29] In his testimony, Mr. Zoccole told the court that he did not talk about this incident with Mr. Bluecoat. He further told the court that he was not afraid of the accused and that he continued to “hang out” with him, almost every day after the incident, even after learning that Mr. Wapoose had died as a result of the beating that he had observed.

[30] On cross-examination, Mr. Zoccole agreed that due to the passage of time and his level of intoxication, he had some difficulty accurately remembering some of what had occurred on September 2, 2014.

[31] Mr. Zoccole agreed that on direct examination he had testified that the blow to Mr. Wapoose’s head with the pole by the accused was the first act in the assault. Mr. Zoccole acknowledged that when he testified during the trial of Z.M.L. on October 18, 2022, he told the court that Z.M.L. and the accused first punched and kicked Mr. Wapoose very close to the streetlight and that the accused then hit Mr. Wapoose on the back of the head with the pole.

[32] Mr. Zoccole agreed with the suggestion that what he told the court under oath on October 18, 2022, was incorrect, explaining that he “must have heard the question wrong”. When it was suggested to him that he was, in this trial, trying to “fill in the gaps” in his memory when he did not clearly remember something, he replied, “correct”.

[33] Mr. Zoccole was next referred to the portion of his direct examination where he testified that after the assault on Mr. Wapoose ended, he was told that “they” wouldn’t hurt him because he was their friend.

[34] Mr. Zoccole was then referred to the evidence he gave at the accused’s first trial on this charge, a May 2022 jury trial. He agreed that he had testified at that trial that nothing had been said to him after the assault by either the accused or Z.M.L. He maintained that his evidence at this trial was correct and that at the earlier trial he “just couldn’t remember”. When it was again put to him that he was trying to fill in the gaps in his broken memory, he replied, “yeah”.

THE EVIDENCE OF TATJANA SHAWANAMASH-IGNACE

[35] Ms. Shawanamash-Ignace was 26 years old at the time of this trial and had known the accused for approximately 10 years. She had also been in a domestic relationship with him between September 2018 and January 2022. They have one child together, born August 19, 2021. Ms. Shawanamash-Ignace also has an older child from a previous relationship who was five years old when her romantic relationship with the accused began. At the time of this trial, Ms. Shawanamash-Ignace had an outstanding charge of assault with a weapon, namely a knife. That charge was laid in January 2022 and Mr. Massicotte was the complainant.

[36] Ms. Shawanamash-Ignace has not testified in any earlier proceedings involving the accused or Z.M.L. She did, however, attend portions of the preliminary inquiry preceding the accused’s May 2022 jury trial, and recalled observing the testimony of Mr. Zoccole and Mr. Bluecoat. On direct examination, she denied attending or observing the accused’s May 2022 jury trial in this matter, denied attending any court proceedings involving Z.M.L., and denied seeing any disclosure relating to the accused or to the charge before the court.

[37] However, during cross-examination, when the witness was shown her 2019 calendar/personal notes which read, in part, “I finally got to read the disclosure/affidavit”, she acknowledged that she had in fact read the disclosure, but that she “did not remember reading it”. She further conceded that she had also observed the news coverage of the accused’s May 2022 jury trial, contrary to what she told the court on direct examination.

[38] Ms. Shawanamash-Ignace testified about several conversations she apparently had with the accused regarding the events of September 2, 2014. The Crown led this hearsay evidence for the truth of the contents, and defence counsel conceded the admissibility of this evidence.

[39] Ms. Shawanamash-Ignace testified that the first of these conversations with the accused was in late November 2018. She told the court that she and the accused were having a few drinks and that he told her that he “had something he needed to tell her”.

[40] Ms. Shawanamash-Ignace told the court that the accused told her that he, Z.M.L., Robert Bluecoat and Mr. Zoccole were drinking the night of September 2, 2014, that they took Mr. Bluecoat home in a shopping cart because he was passed out, that they then took a short cut through Chapples Park, and that they came upon a man passed out. Ms. Shawanamash-Ignace testified that the accused further told her that he and his friends walked past this man but then returned, went through the man’s bag, and then “beat William while he was passed out”.

[41] Ms. Shawanamash-Ignace testified that the second conversation she had with the accused about this incident was in December 2019, and that the only additional information provided by the accused at that time was “him admitting that he did more than he let on”.

[42] Ms. Shawanamash-Ignace told the court that her third conversation with the accused took place after he had been charged with first-degree murder in relation to the death of Mr. Wapoose, which occurred on May 24, 2019. According to the witness, during this conversation the accused added that he had struck Mr. Wapoose with a pole while he was on the ground.

[43] Ms. Shawanamash-Ignace testified that the fourth conversation she had with the accused was “a few weeks following” the third conversation and that “the only addition to that conversation was the mention of a knife”. She added, “but again, him not recalling ever having one, using one or where it ended up”.

[44] Ms. Shawanamash-Ignace told the court that the fifth and final conversation she and the accused had about the events in Chapples Park took place in December 2021. By this point in time, the witness had been to the accused’s preliminary inquiry and he wanted to know “if I believed if he was guilty or not”.

[45] Ms. Shawanamash-Ignace testified that during this last conversation, the accused reiterated what he had told her earlier and that he remembered “hitting him and stabbing him”. When asked what the accused had told her about the stabbing, the witness replied, “he thinks he remembers, but he’s not entirely like sure about it, I guess, or he doesn’t remember actually doing it but being coerced to do it”. When asked to explain what she meant by that, the witness provided a lengthy explanation which, following an objection by defence counsel, she readily acknowledged to be speculation on her part.

[46] On cross-examination, Ms. Shawanamash-Ignace agreed that she had not written anything down about these five conversations with the accused and that her evidence about them was from memory only. She also agreed that she had been suffering from an addiction issue at some point in the past. Finally, the witness acknowledged that her perception of what happened at Chapples Park on September 2, 2014, was tainted by her reading of the disclosure, her attendance at a bail hearing of the accused where she heard a summary of evidence, her attendance at a preliminary inquiry where she heard further evidence and from her watching news coverage of the accused’s May 2022 jury trial.

[47] On cross-examination, Ms. Shawanamash-Ignace was questioned about the contents of her January 10, 2023, statement to the police about this matter. She acknowledged that she told police, among other things, that “over the past year [the accused] has been such a problem for me. It seems like I’m here out of spite. I’m not here out of spite. I’m here because I was asked to be here, and I feel like people finally should know”.

[48] The witness agreed that her feeling that “people should finally” know the truth about this incident had not been present at the accused’s bail hearing, preliminary inquiry, or May 2022 jury trial. She further acknowledged that this feeling post-dated her being charged in January 2022 with assaulting the accused with a knife. Ms. Shawanamash-Ignace also agreed that her evidence, if believed, would increase the likelihood of the accused being convicted and incarcerated which would, in turn, assist her in any custody dispute regarding their child.

THE POSITION OF THE CROWN

[49] The Crown submits that the evidence in this case clearly establishes that Mr. Wapoose died as a result of being stabbed in the neck while being assaulted by Z.M.L. and the accused in Chapples Park on September 2, 2014.

[50] The Crown contends that the issues in this trial are:

1. Whether it has been proven beyond a reasonable doubt that it was the accused who caused the unlawful death of Mr. Wapoose; and

2. Whether it has been proven beyond a reasonable doubt that, when doing so, he had the state of mind required for second-degree murder.

[51] The Crown submits that for the accused to be found guilty of second-degree murder, the court must be satisfied beyond a reasonable doubt that it was he who stabbed Mr. Wapoose in the neck. The Crown further acknowledges that the only evidence in support of the submission that it was the accused who inflicted the fatal stab wound to the neck of Mr. Wapoose is the testimony of Ms. Shawanamash-Ignace. The Crown’s position is that the evidence of Mr. Zoccole, standing on its own, is insufficient for the accused to be convicted of second-degree murder.

[52] The Crown acknowledges that there are potential concerns about the reliability of the evidence of Ms. Shawanamash-Ignace. However, the Crown submits that it was obvious from the demeanour of this witness that she was very reluctant to testify against the accused. The Crown submits that this is suggestive of an absence of a motive to fabricate incriminating evidence.

[53] The Crown further submits that the evidence of Ms. Shawanamash-Ignace details a progression of incriminating disclosures allegedly made to her by the accused, which is indicative of the accused testing the reaction of his then intimate partner. The Crown submits that if a witness was fabricating incriminating evidence, it would be much easier for that witness to simply repeat the same alleged admissions multiple times. The fact that Ms. Shawanamash-Ignace did not do so, coupled with her obvious reluctance in testifying, lends a “ring of truth” to her evidence, according to the Crown.

[54] The Crown submits that if the court accepts the evidence of Ms. Shawanamash-Ignace in relation to the accused saying to her, during the fifth conversation, that he remembered “hitting him and stabbing him”, then the Crown has proven second-degree murder beyond a reasonable doubt.

[55] The Crown contends that if the court is not satisfied beyond a reasonable doubt, based on the evidence of Ms. Shawanamash-Ignace, that the accused stabbed Mr. Wapoose in the neck with a knife on or about September 3, 2014, then the accused should, pursuant to s. 21(2) of the Code, be convicted of manslaughter as a party to the offence.

[56] To be convicted as a party under s. 21(2), the Crown submits that the evidence of Mr. Zoccole establishes that it was either the accused or Z.M.L. who stabbed Mr. Wapoose in the neck on or about September 3, 2014. The Crown contends that the evidence of Mr. Zoccole further establishes that the accused and Z.M.L., having previously agreed to return to Mr. Wapoose and rob him, then jointly assaulted Mr. Wapoose – the common unlawful purpose. In these circumstances, the accused knew or ought to have known that a probable consequence of assaulting Mr. Wapoose was the perpetration of an inherently dangerous act creating a risk of bodily harm to Mr. Wapoose that was neither trivial nor transitory. This makes the accused a party to the offence of manslaughter pursuant to s. 21(2) of the Code.

[57] The Crown acknowledges that there are issues with the reliability of Mr. Zoccole’s evidence, given that the events he testified about occurred approximately nine years earlier and because he had been intoxicated on the night that Mr. Wapoose was assaulted.

[58] The Crown further concedes that the evidence establishes that Mr. Zoccole was approximately 30 metres from the location where Mr. Wapoose was assaulted in the ditch, that it was dark in this location, and that Mr. Zoccole’s ability to observe was compromised by the waist high grass in the ditch.

[59] The Crown submits, however, that the reliability of the fundamental, material aspect of Mr. Zoccole’s evidence – that the accused and Z.M.L. jointly assaulted Mr. Wapoose at the roadside, dragged him into the ditch and continued to viciously assault him – is supported, in part, by some of the non-controversial, corroborative physical evidence in this case. The Crown points to the following evidence:

• Mr. Zoccole testified that an initial assault at the side of Chapples Drive was continued as a joint assault in the ditch. Mr. Wapoose’s blood was found at the side of Chapples Drive and in the ditch adjacent to his throat;

• Mr. Zoccole testified that the accused and Z.M.L. scattered Mr. Wapoose’s possessions along Chapples Drive after they assaulted him. Police located numerous items of paper strewn about near the scene, one of which contained a fingerprint of Mr. Wapoose;

• Mr. Zoccole testified that he stole Mr. Wapoose’s bike from the scene and ditched it in an alleyway near his home. Police recovered a bike identified to be Mr. Wapoose’s that had been found in a laneway in Thunder Bay in approximately mid-September 2014.

[60] The Crown submits that the evidence of Mr. Zoccole as to the material issues in this case is sufficiently reliable to prove beyond a reasonable doubt that the accused, together with Z.M.L., participated in the beating and stabbing that caused the unlawful death of Mr. Wapoose. Pursuant to s. 21(2) of the Code, this renders the accused a party to the offence of manslaughter, according to the Crown.

THE POSITION OF THE ACCUSED

[61] The accused concedes that Mr. Wapoose was unlawfully killed on or about September 3, 2014. The accused submits, however, that the Crown has not proven beyond a reasonable doubt that he is guilty of second-degree murder, or the lesser and included offence of manslaughter, in relation to the unlawful killing of Mr. Wapoose.

[62] The accused contends that the evidence of both Ms. Shawanamash-Ignace and Mr. Zoccole is simply too unreliable to prove beyond a reasonable doubt that he was involved in the assault on Mr. Wapoose, or that he was even in Chapples Park, on September 2, 2014.

[63] The accused submits that Mr. Zoccole, 16 years old in September 2014, had been drinking all day on September 2, 2014, and that he readily acknowledged that he was intoxicated when in Chapples Park that night. The accused further submits that the first time that Mr. Zoccole provided information to the police about this incident was on May 23, 2019, almost five years after it occurred. Mr. Zoccole testified at this trial in February 2023, almost nine years after the death of Mr. Wapoose. The accused suggests that Mr. Zoccole’s memory of events is substantially compromised because of his intoxication and the passage of time.

[64] The accused further submits that Mr. Zoccole’s ability to observe what apparently happened after the point in time when the accused and Z.M.L. dragged Mr. Wapoose into the ditch adjacent to Chapples Drive is severely compromised because:

1. He was 30 metres away from that location;

2. It was dark in the ditch; and

3. The ditch contained thick, waist high grass at the time.

[65] The accused submits that there are other indications of the unreliability of Mr. Zoccole’s evidence. The accused notes that Mr. Zoccole testified confidently that he initially observed the accused strike Mr. Wapoose once on the back of the head with the metal pole at the roadside. His evidence on this point was carefully confirmed on cross-examination. The accused submits that this evidence is, however, obviously incorrect because the autopsy did not disclose any injury to the back of Mr. Wapoose’s head.

[66] The accused also reminds the court that at two points during cross-examination, when confronted with inconsistencies in his evidence in relation to prior evidence he had given about this incident, Mr. Zoccole conceded that he was trying to fill in gaps in his memory. The accused submits that the evidence of Mr. Zoccole was replete with inconsistencies and inaccuracies. As a result, Mr. Zoccole’s evidence is unreliable and cannot support a finding of fact that the accused participated in the assault which caused the death of Mr. Wapoose, according to the accused.

[67] The accused submits that the evidence of Ms. Shawanamash-Ignace is even more unreliable than that of Mr. Zoccole and that her credibility is also seriously in issue.

[68] The accused submits that Ms. Shawanamash-Ignace only came forward four years after the accused was charged with the murder of Mr. Wapoose. By this point in time, she had attended a bail hearing for the accused, read some of the disclosure, attended a preliminary inquiry, and read news articles about the accused’s May 2022 trial. In January 2022, Ms. Shawanamash-Ignace was charged with assaulting the accused with a knife.

[69] The accused submits that the cross-examination of Ms. Shawanamash-Ignace established that she had been untruthful about her prior exposure to evidence in this case. In these circumstances, the accused suggests that no weight should be given to her evidence about admissions allegedly made by him to her during a series of private conversations between them.

[70] The accused reminds the court of the concluding words of Ms. Shawanamash-Ignace’s statement to the police – “He’s done so much to ruin my life so far, and I refuse to let him even try to ruin his son’s life”. The accused submits that these are the words of a person with a motivation to fabricate.

[71] The accused submits that, given the unreliability of both Mr. Zoccole’s and Ms. Shawanamash-Ignace’s evidence, and the issues with Ms. Shawanamash-Ignace’s credibility, the Crown has failed to prove beyond a reasonable doubt that the accused participated in the assault on Mr. Wapoose or that he was even in Chapples Park on the night of September 2, 2014.

[72] On December 11, 2023, I invited defence counsel to make additional submissions regarding the position of the accused on co-principal liability under s. 21(1)(a) of the Criminal Code. Those further submissions were heard on February 1, 2024. The accused submitted that Mr. Zoccole’s testimony should not be believed, particularly in light of the fact that he admitted to stealing the victim’s bicycle, such that he was arguably an accomplice to the alleged robbery of the victim. Defence counsel also provided a summary of the law in relation to ss. 21(1) and 21(2) of the Code. Counsel for the accused submitted that, based on the facts of the case and the application of either of those sections of the Code, the accused cannot be found guilty for anything beyond robbery or aggravated assault.

ANALYSIS

[73] It is not in dispute that Mr. Wapoose died as a result of an unlawful act.

[74] An autopsy was performed on Mr. Wapoose on September 4, 2014. The findings and conclusions are not controversial. The Postmortem Report, dated January 30, 2015, includes the following findings:

1. Mr. Wapoose suffered six stab wounds, the most significant of which was a six cm. gaping wound on the left side of his neck. This wound cut into the internal jugular vein and the internal carotid artery. It then entered the middle part of the throat, behind the mouth and cut deeply across the posterior part of the tongue.

2. Mr. Wapoose had nine red/purple contusions on various locations around his face, one of which was an eight cm. contusion on his right forehead.

3. Mr. Wapoose suffered two lacerations, the most significant of which was an eight cm. vertical scalp laceration on the forehead, to the right of the midline at the hairline, exposing the skull. This laceration was associated with a vertical skull fracture of the right frontal bone, which was in turn associated with right subdural bleeding and bilateral subarachnoid bleeding, and contusions of the right frontal and temporal lobes of the brain.

4. Mr. Wapoose had four fractured ribs on his left side.

5. Mr. Wapoose had a blood ethanol reading of 227 mg/100 ml. at the time of his death.

[75] The forensic pathologist opined that Mr. Wapoose died as a result of multiple blunt and sharp force injuries to the head and neck, with the most likely primary cause of death being a severe loss of blood from the deep stab wound to his neck and throat, which as noted above, cut the internal carotid artery and the jugular vein on the left side. It is not in dispute that the stab wounds suffered by Mr. Wapoose were inflicted by a sharp instrument such as a knife.

[76] The forensic pathologist further opined that a contributory cause of death was the skull fracture and brain contusion, which would have probably rendered Mr. Wapoose unconscious. The skull fracture was described in the Postmortem Report as being “caused by a significant blow to the head of Mr. Wapoose by a heavy object”.

[77] It is an admitted fact that Mr. Wapoose had blood in his esophagus, stomach and in the first part of the small bowel. It is further admitted that “Mr. Wapoose was breathing and swallowing blood for 10-15 minutes, maybe a bit longer”.

[78] I find as a fact that on or about May 3, 2014, Mr. Wapoose, while highly intoxicated and vulnerable, suffered a vicious beating during which he was struck on the head with a heavy object with significant force. I further find that the assault included Mr. Wapoose being repeatedly punched, kicked, and stabbed. I find that the injuries he sustained during this assault included, but were not limited to, blunt force trauma to his head causing a skull fracture which likely rendered him unconscious, four fractured ribs, and two stab wounds to the neck and oral cavity, one of which caused Mr. Wapoose to bleed to death while lying in the ditch adjacent to Chapples Drive.

[79] For the purposes of my analysis as to the culpability of the accused on the charge of second-degree murder, I will first comment on the evidence of Ms. Shawanamash-Ignace.

[80] The cross-examination of Ms. Shawanamash-Ignace was thorough and effective. It established, in my view, that this witness was less than truthful when questioned about her prior exposure to the evidence in this case. By the time this witness was interviewed by police, four years after the accused had been charged with the murder of Mr. Wapoose, she had attended a bail hearing for the accused, directly reviewed some of the written disclosure material, attended a preliminary inquiry and read news coverage about the accused’s May 2022 jury trial.

[81] However, on direct examination, Ms. Shawanamash-Ignace denied having read the disclosure in this case. On cross-examination when confronted with a personal, written calendar that she had created which included the notation, “I finally got to read the disclosure/affidavit”, she was forced to admit that she had in fact reviewed disclosure. She explained this blatant contradiction by suggesting that she didn’t “remember doing that. Like, I don’t remember anything that was in the disclosure”. As can be seen, her explanation for her contradictory evidence is itself contradictory.

[82] Ms. Shawanamash-Ignace was also successfully impeached on cross-examination regarding whether or not she had watched news coverage of the accused’s May 2022 jury trial. She initially denied having done so. However, when presented with her January 10, 2023, video statement to the police in which she told the police that, “I watch the news, and I saw everything that happened at the trial”, she reluctantly admitted that she had “watched parts of it”.

[83] When Ms. Shawanamash-Ignace testified in this trial, she was facing an outstanding charge of assault with a weapon. That charge was laid in January 2022, alleging that she had assaulted the accused with a knife. As noted by defence counsel in closing submissions, Ms. Shawanamash-Ignace’s statement to the police in this case concluded with the following, “He’s done so much to ruin my life so far, and I refuse to let him even try to ruin his son’s life.” I accept the submission of the accused that these are the words of a witness with a motivation to fabricate.

[84] Ms. Shawanamash-Ignace has been shown to be a witness who is, at best, careless with the truth. In my view, the evidence of Ms. Shawanamash-Ignace is, taken at its highest, unreliable. I place no weight on the evidence of Ms. Shawanamash-Ignace.

[85] However, based on the evidence of Mr. Zoccole which I accept, as explained below, I am satisfied beyond a reasonable doubt that the accused was a participant in the September 2014 beating and stabbing of William Wapoose which caused his death.

[86] I note that Mr. Zoccole did not give evidence that he witnessed the victim being stabbed. In fact, he testified that he never saw anyone with a knife on the night Mr. Wapoose was attacked.

[87] I accept the submission of the accused that the court should be very careful when reviewing and weighing the evidence of Mr. Zoccole. Mr. Zoccole was 16 years old in September 2014, and intoxicated at the time of the incident in Chapples Park. On cross-examination, he agreed that due to the passage of time and his intoxication, he had some difficulty accurately recalling some of the details of the events of the night of September 2, 2014.

[88] Mr. Zoccole testified that the accused struck Mr. Wapoose on the back of the head with a pole that he had retrieved from the adjacent golf course. The evidence establishes that Mr. Wapoose did not suffer any injuries to the back of his head. However, the Postmortem Report confirms that Mr. Wapoose sustained an 8 cm scalp laceration on the right side of his forehead and an associated vertical skull fracture of the right frontal bone, caused by a significant blow to the head by a heavy object. In my view, this is consistent with Mr. Wapoose being struck on the head with a pole as described by Mr. Zoccole, but on the front of the head, not on the back.

[89] Mr. Zoccole also testified on direct examination that the blow to the head of Mr. Wapoose was the first act of violence in this assault. When confronted with the fact that he had testified at the trial of Z.M.L. that the punching and kicking preceded the blow to the head, he told the court that he “must have heard the question wrong”. He then agreed with the suggestion that, in this trial, he was “trying to fill in the gaps” when he did not clearly recall details.

[90] Mr. Zoccole testified that he observed the accused and Z.M.L. punching and kicking Mr. Wapoose at the roadside of Chapples Drive before dragging him into the ditch. He further testified that he observed the accused and Z.M.L. continue to punch and kick Mr. Wapoose after they had dragged him into the ditch.

[91] Mr. Zoccole acknowledged that he was intoxicated on the night in question. It is not in dispute that Mr. Zoccole was approximately 30 metres away from the location where Mr. Wapoose’s body was found. Mr. Zoccole agreed that the streetlight adjacent to Chapples Drive did not illuminate the ditch into which Mr. Wapoose was taken, that “it was dark” in the ditch, and that the ditch was “overrun with grass”, all of which impacted his ability to observe what occurred in the ditch.

[92] However, Mr. Zoccole was not shaken on cross-examination when he maintained that he saw the accused strike Mr. Wapoose on the head with a pole. Nor was he shaken when he maintained that he observed the accused and Z.M.L. punching and kicking Mr. Wapoose on the side of Chapples Drive before dragging him into the adjacent ditch where they continued to punch and kick him. He further described and demonstrated for the court the manner of the accused’s punching of Mr. Wapoose in the ditch. Mr. Zoccole testified that following the assault on Mr. Wapoose, Z.M.L. and the accused grabbed Mr. Wapoose’s backpack and scattered the contents along Chapples Drive. Around that point in time, Mr. Zoccole grabbed the bike that had been in Mr. Wapoose’s vicinity when they first saw him, and rode the bike out of the park heading in the direction of his home.

[93] It is well established that a trier of fact may accept some, none, or all of the testimony of a witness. As noted by the Court of Appeal of Ontario in R. v. A. M., 2014 ONCA 769, 123 O.R. (3d) 536, at paras. 12 and 13:

[12] …one of the most valuable means of assessing witness credibility is to examine the consistency between what the witness said in the witness box and what he or she has said on other occasions, whether or not under oath. Inconsistencies may emerge in a witness’ testimony at trial, or between their trial testimony and statements previously given. Inconsistencies may also emerge from things said differently at different times, or from omitting to refer to certain events at one time while referring to them on other occasions. [Citations omitted.]

[13] Inconsistencies vary in their nature and importance. Some are minor, others are not. Some contain material issues, others peripheral subjects. Where an inconsistency involves something material about which an honest witness is unlikely to be mistaken, the inconsistency may demonstrate a carelessness with the truth about which the trier of fact may be concerned. [Citations omitted.]

[94] I agree with the submission of the accused that the issues with Mr. Zoccole’s evidence relate primarily to reliability rather than credibility. In other words, the accuracy of his testimony. However, I do not accept the suggestion that Mr. Zoccole’s evidence is so unreliable that it should be rejected in its entirety.

[95] Mr. Zoccole was obviously incorrect when stating that Mr. Wapoose was struck in the back of the head with the pole. However, the Postmortem Report confirms that he was in fact struck on the front of the head with a heavy object with significant force, causing a skull fracture with an associated laceration. In my view, the inaccuracy of Mr. Zoccole’s evidence as to exactly where on Mr. Wapoose’s head the accused struck him with the pole is not material.

[96] Mr. Zoccole testified at this trial that the assault on Mr. Wapoose began with the blow to his head. At the trial of Z.M.L. he testified that the assault began with punching and kicking, followed by the blow to the head. I am also not persuaded that this is a material inconsistency.

[97] Many of the material aspects of Mr. Zoccole’s evidence are corroborated by physical evidence in this case.

[98] Mr. Wapoose suffered injuries, including a skull fracture, multiple blunt force injuries to the face and head, a blunt force trauma to the left ribs fracturing four of them that are consistent with the assault described by Mr. Zoccole.

[99] Mr. Zoccole testified that the assault on Mr. Wapoose began at the side of Chapples Drive. A small pool of dried blood identified as Mr. Wapoose’s blood was found on the south side of Chapples Drive in the vicinity of where Mr. Zoccole testified the assault began.

[100] Mr. Zoccole testified that the assault continued and ended in the ditch adjacent to Chapples Drive at this location. Mr. Wapoose’s body was found in this location as was a large amount of dried blood on the ground adjacent to Mr. Wapoose’s throat.

[101] Mr. Zoccole testified that following the assault of Mr. Wapoose in the ditch, Z.M.L. and the accused scattered the contents of Mr. Wapoose’s backpack along Chapples Drive. On the morning of September 3, 2014, investigating officers found numerous items of paper strewn along Chapples Drive near the scene of the assault, one of which contained Mr. Wapoose’s fingerprint. Mr. Wapoose’s bloodied health card was found near his extended right hand.

[102] Mr. Zoccole testified that following the assault he stole Mr. Wapoose’s bike and later ditched it in an alleyway near his home. Police recovered Mr. Wapoose’s bike and determined that it had been found in approximately mid-September, in the laneway behind 236 Heron Street. Mr. Zoccole testified that in 2014, he lived on Dease Street, while Mr. Massicotte lived at the corner of May Street and Cameron Street. He testified that their homes were about a block away from each other. According to Google maps, the corner of Cameron Street and May Street is approximately 700 metres from 236 Heron Street.

[103] Mr. Zoccole maintained, throughout a careful and lengthy cross-examination, that he observed the accused strike Mr. Wapoose on the head with a pole following which the accused and Z.M.L punched and kicked Mr. Wapoose at the side of Chapples Drive. He further maintained in cross-examination that he then observed the accused and Z.M.L. drag Mr. Wapoose into the ditch adjacent to the roadway and continue this vicious assault.

[104] During cross-examination, he was not shaken as to these material aspects of his evidence. I am not persuaded that the inconsistencies which were established on cross-examination impact the reliability of these material aspects of his evidence and I therefore accept this portion of the evidence of Mr. Zoccole.

[105] The evidence which I accept does not shed light on who stabbed Mr. Wapoose. Mr. Zoccole testified that he never saw anyone carrying a knife. He provided no evidence that he witnessed a stabbing. However, I accept the Crown’s submission that Mr. Wapoose was in fact stabbed during the attack by either the accused or Z.M.L., who jointly descended upon him. I am not left in reasonable doubt about that.

[106] Based on the portions of Mr. Zoccole’s evidence which I accept, together with the contents of the Postmortem Report, I find that the Crown has proven the following facts beyond a reasonable doubt:

1. That Mr. Zoccole, Z.M.L. and the accused came upon Mr. Wapoose while they were walking through Chapples Park during the late evening/night of September 2, 2014;

2. That Mr. Wapoose was highly intoxicated and sitting on the ground leaning back against a streetlight standard adjacent to Chapples Drive when Mr. Zoccole, Z.M.L. and the accused came upon him;

3. That Mr. Zoccole, Z.M.L. and the accused continued walking past the location where Mr. Wapoose was sitting, but then stopped and returned to Mr. Wapoose’s location, at which time the accused violently struck Mr. Wapoose once on the head with a heavy pole, fracturing his skull and likely rendering him unconscious;

4. That Z.M.L. and the accused then began to punch and kick Mr. Wapoose while he was laying on the ground on or near Chapples Drive;

5. That Z.M.L. and the accused then dragged Mr. Wapoose into the ditch adjacent to Chapples Drive where the two of them continued to beat, punch and kick Mr. Wapoose;

6. That at some point during the joint assault of Mr. Wapoose in the ditch, Mr. Wapoose was stabbed with a sharp object multiple times, including a stab wound to the left side of Mr. Wapoose’s neck which cut the carotid artery and jugular vein, causing Mr. Wapoose to bleed to death within 10-15 minutes.

[107] I am unable to determine on the evidence in this case whether it was the accused or Z.M.L. who inflicted the fatal stab wound. However, I find that it has been proven beyond a reasonable doubt that it was either the accused or Z.M.L. who did so, and that it occurred during their assault on Mr. Wapoose that night.

[108] The Crown submits that for me to find the accused guilty of second-degree murder, I must be satisfied beyond a reasonable doubt that it was the accused who stabbed Mr. Wapoose during this assault and that when doing so, he had the requisite state of mind for second-degree murder. The Crown further submits that the evidence of Mr. Zoccole standing alone cannot establish that the accused stabbed Mr. Wapoose.

[109] The Crown’s alternate submission, should I find that it has not been proven beyond a reasonable doubt that the accused stabbed Mr. Wapoose, is that the accused should be found guilty of manslaughter pursuant to s. 21(2) of the Criminal Code.

[110] The Crown’s position as to the application of s. 21(2) of the Code to the facts of this case is based, in part, on a suggested finding of fact that the accused and Z.M.L. agreed to rob Mr. Wapoose prior to jointly assaulting him and causing his death.

[111] Assuming a joint intention to rob Mr. Wapoose is what motivated the accused and Z.M.L. to return to the location where he was sitting, the assault that immediately ensued arguably engages both s. 21(1)(a) and s. 21(2) of the Criminal Code. For the reasons that follow, I am of the opinion that the accused’s culpability for Mr. Wapoose’s death is properly analyzed pursuant to s. 21(1)(a) of the Criminal Code. I therefore need not address the application of s. 21(2) of the Code.

[112] The differences between sections 21(1) and 21(2) of the Code were explained by Watt J. in R. v. Simon, 2010 ONCA 754:

39 Persons who participate in the offence actually committed, whether as a principal, an aider or an abettor, have their liability determined under s. 21(1).

40 Section 21(2) extends liability for crime in two respects. The first has to do with the persons whose participation in an unlawful enterprise may attract liability. And the second relates to the offence for which participants in an unlawful criminal enterprise may be held liable. [Citations omitted; italics in original.]

41 The persons to whom s. 21(2) extends liability are those whose participation in the offence actually committed would not be captured by s. 21(1). These persons have participated in a prior unlawful enterprise with others and either knew or, in most cases at least, should have known that one (or more) of the other participants in the original enterprise would likely commit the offence charged in pursuing their original purpose.

42 The offence to which s. 21(2) extends liability is not the original “unlawful purpose” to which the subsection refers. The “offence” of s. 21(2) is a different crime, one that a participant in the original “unlawful purpose” commits in carrying out that original purpose. And so it is that we sometimes say that s. 21(2) extends liability to those engaged in one unlawful purpose to incidental or collateral crimes: crimes committed by any participant (in the original purpose) in carrying out the original purpose that the other knew or should have known would likely be committed in pursuing the original purpose.

43 Under s. 21(2), the liability of a party to a common unlawful purpose for an incidental crime committed by another participant requires proof of the party’s participation in the original unlawful purpose, the commission of the incidental crime by another participant and the required degree of foresight of the likelihood that the incidental crime will be committed. Consistent with general principle, each of these essential elements, earlier described as “agreement”, “offence” and “knowledge”, must be supported by an adequate evidentiary record to warrant submission of this basis of liability to the jury. What we require is some evidence on the basis of which a reasonable jury, properly instructed, could make the findings of fact necessary to establish each element of this mode of participation. [Emphasis in original, citations omitted].

[113] Co-principal liability under s. 21(1)(a) of the Code was further explained by the Court of Appeal for Ontario in R. v. Spackman, 2012 ONCA 905 [Spackman]:

181 Section 21(1)(a) of the Criminal Code governs the liability of principals. The provision applies where two or more people “actually commit” an offence and makes both persons individually liable for that crime. The provision also applies where two or more persons together form an intention to commit an offence, are present at its commission, and contribute to it, although each does not personally commit all the essential elements of the offence. Provided the trier of fact is satisfied beyond a reasonable doubt that an accused committed all elements of a crime, it is of no moment whether another person may also have committed it. [Citation omitted.]

[114] The application of co-principal liability in causation-based offences such as second-degree murder and manslaughter was discussed in R. v. Pickton, 2010 SCC 32:

64 In relation to murder, which, as noted above, is premised on a causal requirement (the allegedly unlawful act must "cause" death), the classic scenario in which the potential for co-principal liability arises is when two or more persons assault the victim at the same time, by beating him or her to death. In a joint beating case, since each accused commits each element of the offence of murder (the entire actus reus and mens rea of the offence), and only factual causation may be uncertain (which person delivered the "fatal" blow), legal causation will allow for uncertainty as to the actual act which caused the death. The only requirement for "causation of death" is that related to murder/manslaughter generally. It must be established that each accused's assault of the victim was a "significant contributing cause" (for manslaughter or murder generally) or an "essential, substantial and integral part of the killing" (for first degree murder under s. 231(5)). [Citations omitted.]

66 For an assaultive act potentially to give rise to a charge of murder or manslaughter, two things must be established: the victim must actually die, and the assault must be a "significant contributing cause" of the death. This is why co-principal liability for murder or manslaughter in the latter sense (concurrent acts) is much more likely. If two people each individually assault the victim, it may be unclear which of the two assaults actually caused the victim's death as opposed to other injuries. In law, there is no need to determine who struck the "fatal blow" for co-principal liability to flow to each participant in the assault. Whether one assault, or some combination of the two, caused the death is irrelevant for co-principal liability, as long as both assaults are found to be a "significant contributing cause" of death.

[115] The Court of Appeal for Ontario restated the causation element in the context of group assaults and co-principal liability in Spackman, at para. 183:

Co-principal liability for concurrent acts of two or more persons often arises in prosecutions for murder or manslaughter. Two or more people each individually beat or stab the victim. The victim dies. It may be unclear which attack caused the victim’s death as opposed to other injuries. Legal principle does not require the trier of fact to determine who struck the “fatal blow” for co-principal liability to attach to each participant. Whether this wound or that, or some combination of the two, caused the victim to die is of no concern for co-principal liability, provided both assaults are found to be a “significant contributing cause” of death. [Citations omitted.]

[116] I am satisfied beyond a reasonable doubt that the accused and Z.M.L. jointly assaulted Mr. Wapoose as co-principals, pursuant to s. 21(1)(a) of the Code. I am further satisfied that this group assault caused the death of Mr. Wapoose. I further find that the actions of the accused in furtherance of this group assault, including but not limited to him striking Mr. Wapoose on the head with a heavy pole with sufficient force to fracture his skull, were a significant contributing cause to all injuries sustained by Mr. Wapoose and which caused his death.

[117] As noted by the Supreme Court of Canada in R. v. Strathdee, 2021 SCC 40 [Strathdee SCC], at para. 4, in relation to unlawful act manslaughter:

4 We also wish briefly to clarify a statement of law in R. v. Cabrera, 2019 ABCA 184, 95 Alta. L.R. (6th) 258, aff’d R. v. Shlah, 2019 SCC 56. Any implication from Cabrera that joint/co-principal liability is automatically eliminated if the evidence demonstrates application of force by only a single perpetrator is not accurate. Joint/co-principal liability flows whenever two or more individuals come together with an intention to commit an offence, are present during the commission of the offence, and contribute to its commission. In the context of manslaughter, triers of fact should focus on whether an accused’s actions were a significant contributing cause of death, rather than focusing on which perpetrator inflicted which wound or whether all of the wounds were caused by a single individual. In the context of group assaults, absent a discrete or intervening event, the actions of all assailants can constitute a significant contributing cause to all injuries sustained. Properly read, the discussion of party liability in R. v. Pickton, 2010 SCC 32, [2010] 2 S.C.R. 198, is fully consistent with the foregoing.

[118] In R. v. Strathdee, 2020 ABCA 443 [Strathdee ABCA], at the Court of Appeal for Alberta, the Crown was appealing Mr. Strathdee’s acquittal for manslaughter. This case involved a group assault by at least five men on four occupants of an apartment. One of the victims died from a single stab wound to his chest. The trial judge had been unable to determine which of the assailants inflicted the single stab wound that killed the deceased. The trial judge held that an accused was not liable as a joint principal under s. 21(1)(a) of the Code where the cause of death could clearly only have been inflicted by one person.

[119] In Strathdee ABCA, at para. 32, the Court of Appeal found that the trial judge, after having found that a group assault had occurred, erred in law in failing to properly assess Strathdee’s culpability as a joint principal to manslaughter under s. 21(1)(a) of the Code, thereby improperly narrowing the scope of joint principal liability in the context of a group assault.

[120] In Strathdee ABCA, at paras. 61 and 66, the Court of Appeal stated the following regarding group assaults resulting in an unlawful death:

61 Where two or more persons participate in a group assault, it is not necessary to decide who delivered the fatal blow. Each person who is part of the assaulting group becomes responsible for any act of the group since the "blow of one is the blow of all". [Citations omitted.]

66 A person participating in a group assault, whether involving a single victim or more than one, must accept the consequences which flow from this group action. Each assailant is not permitted to offer his or her individual involvement alone, ignoring for liability purposes, the effect of their collective actions. After all, each assailant necessarily advances and encourages the violence of the others and may also prevent or hinder others from coming to the aid of each other. All that is required for liability is common participation. [Citations omitted.]

[121] In affirming the Alberta Court of Appeal’s conviction of Strathdee for unlawful act manslaughter, the Supreme Court of Canada specifically affirmed the statements of law set in paragraphs 61 and 66 of the Alberta Court of Appeal decision.

[122] Applying the foregoing principles and having found that the accused participated as a co-principal in the group assault on Mr. Wapoose that caused his death, it is not required that a finding be made as to whether Z.M.L. or the accused inflicted the fatal stab wound to determine the accused’s culpability for second-degree murder or manslaughter pursuant to s. 21(1)(a) of the Code.

[123] Section 229(a) of the Criminal Code provides that culpable homicide is murder,

(a) where the person who causes the death of a human being

(i) means to cause his death, or

(ii) means to cause him bodily harm that he knows is likely to cause his death, and is reckless whether death ensues or not;

[124] In R. v. Abdulle, 2020 ONCA 106 [Abdulle], the Court for Appeal for Ontario considered the mens rea requirement for second-degree murder in the context of co-principal liability.

[125] In Abdulle, the 57-year-old victim had been stabbed, beaten, kicked and stomped on by a group of young people. The three appellants were charged with second-degree murder. The Crown alleged that they were co-principals in the attack, that one or more of them inflicted the fatal stab wounds, and that all three had the necessary intent for murder pursuant to s. 229(a) of the Criminal Code. No witnesses were able to definitively identify the actions of any of the accused.

[126] One of the grounds of appeal in Abdulle was that the trial judge had erred in his instruction to the jury on the mens rea for murder in a case involving co-principal liability. Specifically, the appellants argued that, in instructing the jury on the liability of co-principals, the trial judge erred by telling them that a “non-stabber” participant could have had the intent for murder even if he or she was unaware that another participant had a knife or had stabbed the victim.

[127] The relevant section of the jury charge which the appellants submitted was in error was as follows:

As I have already explained to you, in terms of proving participation in causing another person’s death, it is not necessary for you to be satisfied beyond a reasonable doubt which accused person or persons delivered the fatal injuries. … It is not necessary to find use of or knowledge of the use by another of a knife to find an accused person guilty of murder, as long as you are satisfied, on all of the other evidence, that however that person participated in the concerted attack on [the deceased], that person had one of the two intentions required for second-degree murder. [Emphasis in original.]

[128] The Court of Appeal rejected the submission that this charge was in error. The Court held, at para. 27:

The trial judge properly instructed the jury on the liability of co-principals and on the mens rea for murder. In the circumstances of this case, the intent for murder – subjective intent to cause bodily harm, and subjective knowledge that the bodily harm was of such a nature that it was likely to result in death – could be inferred if the jury found that the appellants participated in the beating, kicking, and stomping of an incapacitated and grievously injured victim. It was not necessary for them to find that an accused knew that one of the other assailants was using a knife.

[129] In Abdulle, the Court also rejected the submission of the appellants that a “non-stabber” in a group assault could only be liable if he or she had knowledge of the lethal force that caused death and participated in the attack with that knowledge. The court stated the following at paras. 39, 40, and 42:

39 The trial judge did not err. He explained that, in the context of party liability, the Crown need not prove which attacker inflicted the fatal blow, but rather only that each accused participated in the joint attack, with the requisite state of mind for second-degree murder. He instructed the jury as to how they could determine an accused person’s state of mind, including by considering the person’s words and conduct, as well as the number, nature, and severity of the injuries suffered by [the deceased]. Finally, he instructed them that, if they were satisfied beyond a reasonable doubt that an accused person had both caused the death of Maclean and had either intended his death or intended to cause him bodily harm that they knew would likely result in death and were reckless whether death ensued, they were to find that accused guilty of second-degree murder.

40 The jury could have found the appellants guilty on the basis of knowledge of the knife, or without such knowledge. The jury was entitled to infer knowledge of the knife from the nature of the victim’s injuries as demonstrated by the amount of blood on the victim, on the ground, and on Jama’s blood-stained shoes. While use or knowledge of the knife would have guaranteed the requisite intent, participation in the brutal attack, even without such knowledge, would also have sufficed. [Emphasis added.]

42 [T]he trial judge found, in sentencing the appellants, that all three were involved in a joint attack on Maclean, “either using a knife, or knives, or being aware that at least one of the others was using a knife, or knives, all the while having one of the intents for murder in s. 229(a) of the Criminal Code.” In the two paragraphs immediately before he came to this conclusion, the trial judge described Maclean’s injuries and the brutal and violent nature of the assault, noting that, “[g]iven the viciousness and brutality of this attack, and the appalling loss of blood involved, it should have been obvious that Mr. Maclean would not survive his injuries.” It was based on this evidence that he made his finding. [Emphasis added.]

[130] R. v. Hannan, 2023 NSCA 7 [Hannan], was an appeal of a second-degree murder conviction in the context of an assault of a single victim by two accused. The victim died as a result of seven stab wounds to his chest, abdomen, side and back. The single eyewitness to this assault did not see any weapons. He described the victim as having been thrown off his bike and then hands were flying as they “beat the crap out of him”.

[131] In rejecting the submission that the trial judge had erred in charging the jury on co-principal liability, the court held, at para. 122, that “it was entirely appropriate to charge the jury on the appellant’s potential liability as a joint or co-principal.” The court in Hannan adopted the passages from Strathdee SCC, Spackman and Abdulle which I have referred to above. The court further stated, at paras. 116 and 117:

I see no error in the jury charge. The issues the jury had to decide were whether the appellant was one of the two individuals who fatally attacked the deceased, and if he were, did he cause the death of the victim with the requisite murderous intent.

The judge repeatedly explained to the jury that if they had a doubt the appellant was one of the assailants or had contributed to the victim’s death they must acquit. Further, if they had a doubt he intended to cause death or bodily harm that he knew was likely to cause death and was reckless whether death would ensue, the jury had to acquit the appellant of murder.

[132] The court added, that “it was not necessary for the Crown to establish whether the appellant used a knife, or if he did, whether he struck one or any of the fatal blows. In the eyes of the law, the blow of one is the blow of all.”

[133] I have found at para. 106 herein that the accused and Z.M.L. jointly assaulted Mr. Wapoose. I find that they are co-principals in this assault pursuant to s. 21(1)(a) of the Code.

[134] I have further found that this group assault caused the death of Mr. Wapoose and that the actions of the accused were a significant contributing cause to the injuries sustained by Mr. Wapoose, and which caused his death.

[135] I have found as a fact that the accused’s actions during this assault included, but were not limited to, striking a highly intoxicated and vulnerable victim on the head with a heavy object with enough force to split his scalp, fracture his skull and bruise his brain, likely rendering him unconscious.

[136] I further find that the accused continued to participate in the joint assault of the victim by punching and kicking him at the roadside followed by more punching and kicking after the intoxicated and likely unconscious victim was dragged into the ditch. I find these actions of the accused to have been a significant contributing cause of the other injuries suffered by the victim, including multiple bruises on the face and forehead and four fractured ribs. During the vicious assault of Mr. Wapoose in the ditch, either the accused or Z.M.L. fatally stabbed him in the neck. The two of them then walked away and left Mr. Wapoose to die.

[137] Again, as noted by the Court of Appeal in Abdulle, at para. 27:

the intent for murder – subjective intent to cause bodily harm, and subjective knowledge that the bodily harm was of such a nature that it was likely to result in death – could be inferred if the jury found that the appellants participated in the beating, kicking, and stomping of an incapacitated and grievously injured victim. It was not necessary for them to find that an accused knew one of the other assailants was using a knife.

[138] In the circumstances of this case and based on my findings that the accused and Z.M.L. participated in the beating, kicking, and punching of an incapacitated and badly injured victim, and based on the nature of the injuries suffered by the victim, I am satisfied beyond a reasonable doubt that the accused subjectively intended to cause Mr. Wapoose bodily harm that he knew was likely to cause his death and that he was reckless whether death ensued or not. It is not necessary for me to find as a fact that the accused either used a knife or that the accused knew that his co-assailant was using a knife.

[139] I find the accused guilty of second-degree murder in the September 3, 2014, death of William Wapoose.

Released: March 13, 2024

COURT FILE NO.: CR-21-0026-00

DATE: 2024-03-13

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

His Majesty the King

Crown

• and –

Jonathan Massicotte

Accused

REASONS FOR JUDGMENT

Fregeau J.

Released: March 13, 2024